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TrustsandWillsMorse v. Volz, 808 S. W. 2d 424, is a case involving Marvin Morse, who died in 1986. His first wife, with whom he had one child, predeceased him in 1978. He remarried in 1984 to a woman who had a child by her first marriage. The second wife died in 1987. Before his death, the testator changed his will to leave all of his property to his second wife. The testator’s son brought an action contesting his father’s will. The Circuit Court entered judgment on verdict that the proffered document was not his father’s last will and testament, and the personal representative (her daughter from her first marriage) of father’s second wife’s estate appealed. The Court of Appeals held that; (1) evidence did not establish that father lacked testamentary capacity, and (2) evidence did not establish that second wife unduly influenced execution of the testator’s last will and Testament

Undue influence means such influence as destroys the free choice of the person making the will or trust. To break the will or trust the evidence must show such influence as amounts to force, coercion or overpersuasion sufficient to destroy the free agency and will power of the testator. Sehr v. Lindemann, 153 Mo. 276, 54 S.W. 537. A presumption arises that the testator was unduly influenced by the beneficiary when the evidence shows (1) a subsistent fiduciary relationship between the testator and the beneficiary, (2) that the beneficiary was given a substantial benefit by the will and (3) that the beneficiary was active in causing the execution of the will. Hodges v. Hodges, 692 S. W. 2d 361. A fiduciary relationship is not shown merely because the testator and beneficiary are husband and wife. That is because the spousal relationship betokens a reposed mutual confidence that engenders the flow of generosity and affection from one to the other. Snell v. Seek, 363 MO. 225, 250 S.W. 2d 336. It follows that “a husband or wife may properly influence the making of a will … by the other for his or her own benefit, so long as the influence is not exercised in an improper manner or by improper means, and is not sufficient to have, in effect, substituted the will of one for the other.” Id.

In State ex rel. Smith v Hughes, 200 S.W.2d at 363a wife urged and solicited her husband to make a will in her favor did not, by that fact, exercise undue influence over its execution. Nor, to prove the issue, is it enough that the beneficiary of the will (the second wife) dominated other aspects of the testator’s life in ways adverse to the contestant (the children of the first marriage). The fact that the wife “procured the scrivener and was present when the will was executed” does not support an inference of undue influence. Also, the fact that a husband bequeaths all of his property to his wife to the exclusion of his children by a former marriage is not an unnatural disposition and does not support the inference of undue influence.

In Watermann v. Eleanor Fitzpatrick Revocable Living Trust,  369 S. W. 3d 69, the settlor (Fitzpatrick) executed a will in 1996  that left her assets in equal shares per stirpes to her four living children. In 2007, the settlor revoked the 1996 will and executed a durable power of attorney, a living will declaration, a last will and testament and a revocable trust. The trust provided that the trustee had discretion to sell the property and distribute the proceeds to three of the four living children. The child that was omitted as a beneficiary of the trust claimed that her mother was unduly influenced by her brother, the trustee, to exclude her from the trust.

The court ruled that in order for plaintiff to prove that defendants, or any of them, exerted undue influence, the plaintiffs must show overpersuasion or coercion which substituted defendants’ will for the settlor’s free will. Ruestman v. Ruestman, 111 S.W.3d 464.

As to the issue of Eleanor’s competence, the Court found no evidence that Eleanor was not competent to make the estate planning decisions she made. Testimony supported a finding that, up until the very end of her life, Eleanor was able to understand the ordinary affairs of life, was able to understand the nature and extent of her property, was able to know the persons who were the natural objects of her bounty and that she could intelligently weigh and appreciate her natural obligations to those persons, which proves she was of sound and disposing memory. It is not undue influence for the beneficiary to exercise influence as long as it is not coercive or importunate as to deprive the benefactor of his or her free agency.